Prashant Kumar Tekam vs State of M.P. and Others

R.S. Jha, J.—The petitioner has filed this petition being aggrieved by order dated 5.4.2012 passed by the respondent authorities whereby the contract of service of the petitioner appointing him on contract basis for one year on the post of Manager has been terminated. The brief facts, leading to the filing of the present petition, are that the petitioner applied for appointment on the post of Manager on contractual basis for a period of one year pursuant to an advertisement issued by the respondent authorities on 22.1.2007 proposing to fill up backlog vacancies of Scheduled Caste and Scheduled Tribes categories pursuant thereto the petitioner was ultimately appointed on contractual basis for one year by order dated 17.9.2007. The contractual appointment of the petitioner was extended from time to time, lastly by agreement dated 30.1.2012 whereby it was extended upto 30.1.2013.

In the meanwhile, the petitioner filed W.P. No. 416/2012 before this Court for being appointed on regular basis and for regularization which was disposed of by order dated 13.1.2012 directing the respondent authorities to consider the petitioner''s case for regularization within six weeks.

As the representation of the petitioner was not considered and decided within six weeks, the petitioner filed Contempt Petition No. 430/2012 before this Court, copy of which was supplied to the respondents on 12.3.2012. When the Contempt Petition came up for hearing before this Court, the respondent authorities informed the Court that the representation has already been considered and rejected by order dated 19.3.2012 pursuant to which the Contempt Petition was withdrawn.

Subsequently, by the impugned order dated 5.4.2012 the contract of service of the petitioner has been terminated, being aggrieved by which the present petition has been filed by the petitioner before this Court.

It is submitted by the learned counsel for the petitioner that the impugned order has been passed as the respondents bore a grudge against him for having filed a writ petition and contempt petition and, therefore, the impugned order is malafide. It is further alleged that the return of the respondents discloses that the petitioner has been removed on account of certain alleged misconducts and, therefore, as the impugned order could not have been issued without giving any opportunity of hearing to the petitioner and conducting an enquiry into the charges, the impugned order is in violation of the principle of natural justice.

It is further submitted by the learned counsel for the petitioner that the respondents have alleged negligence in the performance of the duties on the part of the petitioner but the said allegations relate to the period prior to renewal of his contract by agreement dated 30.1.2012 and, therefore, became irrelevant thereafter which indicates total non-application of mind on the part of the respondent authorities. On the basis of the aforesaid submission, it is stated that the impugned order be set aside.

The learned counsel for the respondent nos. 2 & 3 Corporation submits that the allegations of malafide made by the petitioner are totally baseless and have no foundation. It is submitted that specific allegations of malafide have not been made in the petition against any individual officer nor has such a person been impleaded by name as respondent and, therefore, in the absence of specific allegations of malafide, the contention of the petitioner deserves to be rejected.

It is also submitted by the learned counsel for the respondents that W.P. No. 416/2012 and C.P No. 430/2012 were filed by the petitioner alongwith one Shri Mahendra Jharbde and if the respondents had any malafide intention against the persons filing the Writ Petition or the Contempt Petition, both of them i.e. the petitioner as well as Mahendra Jharbde would have been removed from service but that is not the case in the present petition which indicates that there is no malafide intention on the part of the respondents as alleged by the petitioner.

It is further submitted by the learned counsel for the respondents that the impugned order has been passed on the basis of a scrutiny of the record of the petitioner and is in accordance with and under the provisions of Clause-4 of the terms of contract of appointment which provided that either of the parties to the contract would be at liberty to terminate the same by giving one month''s notice. It is submitted that the petitioner, since the very beginning, had been negligent in the performance of his duties and had remained absent on several occasions without obtaining prior permission or leave and had absented from duty for more days than the contract permitted and in this regard notices had also been issued to the petitioner on several occasions but the respondents, with a view to give him another chance, had extended the contract of service.

It is submitted that even after extension of the contract of service on 30.1.2012 the petitioner again remained absent without obtaining sanction or leave from 22.2.2012 till the date of issuance of the impugned order. It is submitted that in view of the aforesaid, the respondent authorities dispensed with the service of the petitioner in terms of the contract which cannot be said to be punitive in nature warranting any interference by this Court.

The learned Panel lawyer appearing for the respondent State submits that the petitioner, after termination of the contract, has also accepted one month''s pay in lieu of notice as per the provisions of Clause-4 of the terms of contract as is evident from Annexure P-7 and, therefore, having abandoned service and having accepted the compensation, cannot be permitted to assail the impugned order.

I have heard the learned counsel for the parties at length. From a perusal of the record of the case it is apparent that when the issue of filling up of backlog posts came up before the Board of the respondent nos. 2 & 3, it took a decision in its meeting held on 16.2.2004 to fill up the post on contractual basis and that after the said decision the posts in question were filled up on contractual basis. It is also undisputed that the petitioner was appointed on the post of Manager on contract basis by order dated 17.9.2007 and that Clause-4 of the Terms of Contract for appointment provides that the contract can be terminated by either side by giving a month''s notice. It is pertinent to note that there is no clause in the contract to the effect that the respondents are required to give notice and conduct an enquiry against the petitioner in case they propose to terminate the contract during its subsistence on account of some misconduct or allegations made against him.

From a perusal of the record it also clear that W.P. No. 416/2012 and C.P. No. 340/2012 had been filed by two persons, namely the petitioner and one Mahendra Jharbde, and that the contract of service of the petitioner alone has been rescinded while that of Mahendra Jharbde continues to remain in subsistence and he is continuing to perform his duties. It is also clear from a perusal of the petition filed by the petitioner that no malafide against any individual officer, specifically the officer who was impleaded as a contemnor in the Contempt Petition, has been made by the petitioner nor has any such officer been impleaded by name in the petition and, therefore, there is total absence of any specific allegations of malafide except for stating that the petitioner''s contract has been rescinded on account of filing of the Contempt Petition.

From a perusal of the return filed by the respondents, it is further clear that the respondents had renewed the contract of the petitioner on 30.1.2012. However, subsequently he again absented himself without leave on the pretext of death of his uncle on 22.2.2012 and continued to remain absent till the issuance of the impugned order dated 5.4.2012 and that on this count the respondent authorities scrutinized the petitioner''s case and on finding that the petitioner was habitual of leaving his work place without informing the higher authorities and that in that respect he had been given notices on 31.5.2008, 2.7.2009 and 3.3.2010 and that inspite of giving him a chance to improve by renewing the contract agreement dated 30.1.2012, the petitioner again absented himself without leave from 22.2.2012 onwards, therefore, the respondent authorities have terminated the contract of the petitioner by the impugned order dated 5.4.2012 in exercise of powers under Clause-4 of the contract of service.

It is pertinent to note that even otherwise as on date, the period of the petitioner''s contractual appointment would have come to an end on 30.1.2013.

In view of the aforesaid facts and circumstances, as it is evident and established that the petitioner is a contractual employee and that Clause-4 of the contract permitted termination of the same by giving one month''s notice by either side, therefore, I am of the considered opinion that rescinding of his contract of service, even if it is based on the ground stated by the respondents in the return, is not punitive in nature and does not warrant any interference by this Court as has been held by the Supreme Court in the cases of State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, and G.B. Pant Agricultural and Technology University Vs. Kesno Ram,

At this stage it is pertinent to mention that the Division Bench judgment of this Court, in the case of Mission Director, RCH/NRHM Vs. Ranjit Jain and Another, , relied upon by the petitioner, has no applicability to the present case for two reasons; firstly, as the impugned order in the present case is not punitive and secondly, in view of the fact that in the case of Ranjit Jain (supra) before the Division Bench there was a specific clause No. 8 in the contract of appointment which provided that in case the performance of an employee was not found satisfactory, the contract of the employee could be terminated after affording an opportunity of hearing to the concerned employee, whereas there is no such term or clause in the contract of appointment of the petitioner. In view of the aforesaid facts and circumstances, I find no merit in the petition which is, accordingly, dismissed. In the facts and circumstances of the case, there shall be no order as to the costs.